As per the Children’s Act of South Africa (38 of 2005), following a divorce, the biological father retains complete parental rights over his child or children unless a court stipulates otherwise.

While married fathers have these rights automatically, unmarried fathers do not. Unmarried, biological fathers automatically obtain full parental rights to their child under the Children’s Act (Section 21) if they meet specific criteria:

• Co-reside with the child's mother in a committed partnership at birth.
• Regardless of whether or not he lived with the child’s mother in a permanent life partnership, he nonetheless still acquires full Parental Responsibilities and Rights if he complies with the requirements set out in Section 21(1)(b).
• In terms of Section 21(1)(b):
  1. he must be identified or consent to be identified as the child’s father;
  2. contributed or have attempted in good faith to contribute towards the child’s upbringing; and
  3. he must have contributed or attempted to contribute in good faith towards the child’s maintenance for a reasonable period of time.

Mediation of Section 21 disputes

In the event of there being a dispute between the child’s mother and father as to whether the father has met the requirements of Section 21(1)(b) the dispute must be referred to mediation. In the event of the mediation being unsuccessful, either party can thereafter approach the High Court for adjudication of their matter. If the mother has denied the father access to their child, an unmarried father can exercise his rights by applying for care and/or contact rights at the Children’s Court. If the application is for guardianship, the High Court must be involved. The High Court, as the upper guardian of all minors, is the only court that can grant permission for guardianship.

Explaining the difference between care, contact and guardianship

1. Care

   This entails the entitlement to have a child primarily reside with one partner and oversee their daily activities.

2. Contact

   This refers to maintaining a personal connection with a child, enabling an individual to visit, spend time with, or communicate with the child.

3. Guardianship

   This encompasses protecting a child's property rights, representing them in legal affairs, and consenting to important life events such as marriage, adoption, departure from South Africa, or passport application.

Sources

• Republic of South Africa. 2005. Children’s Act 38/2005.